Comparative analysis of conceptions of human rights, democracy and the rule of law in selected third countries, FRAME Deliverable 3.3

Abstract

This report presents a comparative analysis of the different understandings and perspectives on human rights, democracy and rule of law in third countries with which EU has established strategic partnerships: China, India, Peru and South Africa. This explorative report focuses on theoretical conceptions of human rights, democracy and rule of law, with limited attention to their operationalization. The eventual aim of Work Package 3, of which this report forms a part, is to provide the EU with conceptualizations of human rights, democracy and the rule of law that take into consideration the diverse conceptions found in third countries and in other international organisations. This comparative study poses a challenge to the reader who is unfamiliar with non-western perspectives on human rights, democracy and rule of law. While South African conceptions appear largely familiar to a European audience, China, India, and Peru present notions and perspectives that are more divergent – compared to those found in the EU. In this sense, this report is meant to challenge some of the reader’s assumptions. The report starts with a detailed description of the methodology used (Chapter II). It clarifies the terminology used, and the methods of data collection and analysis. It also discusses the practical and methodological challenges of this comparative study. Chapter III provides a description of the historical, social, and political context of each of the countries under review, in order to more fully understand the development of the domestic conceptions of human rights, democracy and rule of law. Chapter IV is dedicated to the comparative analysis of the domestic conceptions. This chapter is divided into three parts. Human rights conceptualisations are examined in Section A. This sections shows that in the countries under review, the notion of ‘human dignity’, present in the European conception, is combined with other traditional notions that encourage group understandings of human rights and moderate individualism. This is the case with the notions of ‘harmony and the spirit of common brotherhood’ in India, the principle of Ubuntu in South Africa and the principle of unity in China. With the exception of China, where the ‘universal and relative’ character of human rights is emphasized, the universality of human rights was endorsed in all countries. The same holds for the indivisibility of human rights, although prevalence of one set of rights was perceived in practice. The main distinction, amongst the countries and with the EU, was the notion of ‘minority’, inherently connected to each country’s own historical construction. Collective rights, and moreover, the country’s approach towards diversity, is deeply connected to these notions. The review also shows that the approach towards equality taken by the countries under review is very similar to the one adopted at the EU, recognizing the equality of individuals and prohibiting discrimination based on enumerated grounds. The main difference is found in relation to the recognition of sexual orientation as a ground for discrimination. The next chapter discusses conceptions on democracy in Section B. It finds that South Africa, Peru and India all hold similar conceptions of democracy as the EU. At the same time, these countries have distinctive elements in their concept of democracy, for instance by recognizing both constitutional authority and traditional authority (South Africa), fostering the political representation and participation of socially disadvantaged groups (India). The Chinese conception of democracy diverges widely from the EU conception of democracy since it does not include free and competitive elections as a core element, nor does the principle of ‘multi-party cooperation’ challenge the undisputed leadership of the Communist Party of China. Also, contrary to the liberal and free-market foundation of the EU, we found an explicit commitment to socialism in the Constitution of China and India, and explicit references to a ‘social state’ and ‘social justice’ as core constitutional values in Peru and South Africa, respectively. As regards the rule of law, dealt with in Section C, this report finds that the EU shares core minimal/ ‘thin’ elements with all four countries under review. Chinese, Indian, South African and Peruvian views on legality and equality before the law do not appear much different from the EU’s views. On the other elements of the rule of law, conceptual divergences occur, particularly with regards to China, which promotes the notion of a ‘socialist rule of law with Chinese characteristics.’ It appears that in modern day China the rule of law is viewed more as an instrument (to rein in corruption, for example, and to attain the desired social system) than as an end in itself. The report concludes that some elements of the domestic conceptions of human rights, democracy and rule of law in China, India, Peru and South Africa are widely different from the EU’s conceptions, although there is also much shared ground. Without doubt, EU external policies should be sensitive to possible conceptual differences and indicate awareness of these differences in their conceptualisations of human rights, democracy and rule of law. It also recognises that an enduring challenge is to distinguish compliance/implementation from abstract conceptions. The report also shows that human rights occupy a privileged position in international relations and in EU foreign policy in particular, and that this emphasis on human rights is also reflected at national level. The degree of standard setting on human rights – by means of binding international treaties and authoritative soft law instruments – is not matched for democracy and rule of law.